What If Your Children Come after Your Will Is Done? Text Size:

Of course, many families have children. There are many ways that children may enter a family. There are natural children born of the marriage, non-marital children, adopted children or children of one or the other spouse. In a will, terms to describe children are often "descendents," "issue" or "child." As you can see, it is possible for a will to be confusing or unclear as to who is included as a beneficiary in the distribution of estate property.

Omitting Children from a Will

A pretermitted heir is an heir that is excluded from a person's will. As a general rule, children are not protected from omission in a will to the extent that a spouse would be protected. This is because the law allows people to dispose of their estate property as they wish. However, there are certain common requirements to provide for children. As an example, some states have what is called a homestead, which is a set-aside of a portion of the dead person's property for the spouse and any minor children, and require a certain part of that homestead to be made available to children when the estate is distributed. Further, if there was a requirement to support the child, there may be an allowance to be distributed to that child, making that amount available prior to the distribution of estate property under a will.

Rights of Children

Some states have statutes that are similar to the rules of intestate succession in order to provide for a child that has been omitted from a will. These statutes provide rules for distributing property where there is no will, or where an heir has been omitted, and generally apply to children unintentionally omitted. If a person wishes to omit a child, their lawyer will often collect evidence of that intent in order to defend against a will challenge. This can be done with language in the will, or documents supporting the intent to omit that child.

Other states also provide for a child born or adopted after a will is made. Remember, methods of including or excluding a child include providing for that child in a manner different than in the will, and that also applies to adopted children. If the person making a will has at least one child, but leaves his or her entire estate to a spouse, generally this omission is allowed to stand. On the other hand, if the person making the will had more than one child when he or she made the will, and left property to one but not the other, that omission may be allowed to stand. There are many different possibilities from state to state and outcomes will vary.

Unknown Children

Sometimes, a person is not aware of a particular child, or thought that the child had died. Again, in that situation, the rules of intestate succession likely apply to that child at the expense of the other heirs.

How a Lawyer Can Help

In order for a will to be valid its terms must be easily interpreted and able to be put into effect. A person making a will must clearly state what he or she wishes to happen to their property. Remember, your will is going to be interpreted at some future date, in some far-away place, by somebody that never knew you. Your will must be able to speak for you by being clearly expressed under the laws in effect in your state. Meeting with a lawyer should give you the peace of mind that your heirs will be provided for and that your property will be distributed as you express in your will.

Questions for Your Attorney

• How can I omit a child from my will if I so choose?
• What documentation or evidence will allow my intent to control during will interpretation?
• If I was not mentioned in a will, how can I still receive estate property?
• Should I make a new will after I've had all of my children?

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